Understood in context, the last five seconds of the following clip of Humza Yousaf, speaking to the media on Wednesday afternoon, are potentially of huge significance for the free speech rights of Scottish citizens.
Earlier this week, Conservative MSP Murdo Fraser wrote to Scotland’s top police officer to demand “urgent clarity” after the force recorded a social media post he had written criticising the SNP-led government’s Non-Binary Equality Action Plan as a ‘non-crime hate incident’ (NCHI), yet failed to do the same when similar complaints were made against SNP First Minister Humza Yousaf and multi-millionaire author JK Rowling.
On Monday, the Harry Potter author deliberately tested the new law, highlighting well-known transgender people in a thread on social media platform X. She included the broadcaster India Willoughby, who reported Rowling to police in England for misgendering her last month, and the activist Munroe Bergdorf, along with convicted sex offenders.
Commenting on the trans people in her thread, Rowling wrote: “Obviously, the people mentioned in the above tweets aren’t women at all, but men, every last one of them.” She finished her social media posts with the hashtag “arrest me”.
Complaints had also been made about Mr Yousaf, the First Minister, relating to a speech he gave in 2020 about how “the most senior positions in Scotland are filled almost exclusively by people who are white”.
A police spokesman said of both cases: “The circumstances have been assessed and will not be recorded as a non-crime hate incident.”
This, however, is contrary to Police Scotland’s own guidance, which is to record all reports of ‘hate crimes’ as NCHIs, no matter how trivial or vexatious.
Perhaps unsurprisingly, this blithe announcement from the country’s police force prompted Mr Fraser to accuse the police of double standards.
In a letter to Jo Farrell, the chief constable of Police Scotland, Mr Fraser said: “Police Scotland have not only breached their own policy on recording non-crime hate incidents, but now appear to be making it up as they go along.”
He added: “I hope the chief constable will contact me urgently with an immediate apology for recording a hate incident against me and confirming all records in relation to it have been destroyed. They should also ditch their existing unlawful policy – as has been done in England and Wales – which I believe is a clear breach of people’s human rights.”
This latter section of the letter was in fact reiterating demands Mr Fraser had made in a previous letter to Police Scotland, that we helped him draft, threatening legal action if they didn’t revise this guidance, a case we have pledged to fund. (You can find the crowdfunder by clicking the button below).
With Scotland’s draconian Hate Crime Act now activated, the country’s national police force has made clear that its officers will investigate every single complaint made under the new law, and even if an incident doesn’t meet the criminality threshold, it will nevertheless still be logged as a NCHI. Why? Because as Mr Fraser’s case so neatly demonstrates, the defining factor with a NCHI is only ever the complainant’s perception of what happened, even when there isn’t a shred of evidence to support the claim that the accused was motivated by hostility towards one or more protected characteristic.
As if to aid in the weaponisation of this investigatory process by activists, Police Scotland has even created 411 ‘third party reporting centres’ around the country where ‘hate crimes’ can be reported anonymously.
This nascent culture of snitching on one’s fellow citizens risks having a detrimental effect on people’s careers – for instance, an NCHI can show up on an enhanced criminal record check and may prevent you getting a job as a teacher or a carer.
However, it looks like a law suit may not be necessary to get Police Scotland’s NCHI guidance revised.
According to Humza Yousaf, being interviewed yesterday afternoon, Police Scotland are now “looking at the changes that were made in England and Wales recently [regarding the recording and retention of NCHIs] and reviewing their own procedures in that respect”.
If that means Police Scotland are going to revise their national guidance on NCHIs to bring it into line with the guidance that the police in England and Wales are now following – after a succession of legal and legislative victories by Harry Miller and the FSU – that’s excellent news.
What Mr Yousaf said in the interview was slipped in almost as an afterthought, but it sounds very much like our threat of legal action has pressured Police Scotland into doing the right thing when it comes to the recording and retention of NCHIs.
Importantly, it will mean we can allocate the money we’ve raised so far in our fundraiser to pay for the defence of any of our members who are contacted by the police in connection with a speech-related ‘hate crime’.
On that note, we have an arrangement in place with a top firm of criminal lawyers in Scotland so we can assign a solicitor to FSU members who are arrested or questioned under caution because they’re suspected of committing a speech-related ‘hate crime’ (as defined in the new law), although whether we help them in this way, and whether we continue to help them after the first police interview, will be discretionary.
If you’re concerned about the Hate Crime and Public Order (Scotland) Act 2021, and the number of innocent Scots likely to be get entangled in its net, please do consider donating to our newly established Scottish Fighting Fund.
If you’re an FSU supporter and you live in Scotland, now might be a good time to join the FSU.
